Boring v. Conemaugh Memorial Hosp.
| Decision Date | 25 July 2000 |
| Citation | 760 A.2d 860 |
| Parties | Kathleen BORING, Appellant, v. CONEMAUGH MEMORIAL HOSPITAL, Appellee. |
| Court | Pennsylvania Superior Court |
Michael A. Murphy, Pittsburgh, for appellant.
Heather A. Harrington, Hollidaysburg, for appellee.
Before DEL SOLE, EAKIN and TODD, JJ.
¶ 1 This is an appeal from a judgment entered in favor of defendant, Conemaugh Memorial Hospital (the Hospital), after a jury returned a verdict finding the Hospital was negligent, but that its negligence was not a substantial factor in bringing about Appellant's harm. Appellant filed post-trial motions seeking a new trial, which were denied. This appeal followed. We affirm.
¶ 2 This action was initiated by Appellant seeking recovery for a facial nerve injury she suffered following a surgery on her left ear at the Hospital. Appellant alleged that the surgeon performing the procedure encountered uncontrollable bleeding causing him to abort the procedure. Appellant's expert at trial testified that the excessive bleeding was caused by Appellant's use of the drug Naprosyn within days before surgery and this bleeding put Appellant at an increased risk for a facial nerve injury during surgery. Appellant offered evidence indicating that the nursing staff did not inform the surgeon his patient had used this drug within 72 hours of surgery, and that the nurses failed to utilize the "Chain of Command" procedure of the Hospital to stop the surgery.
¶ 3 Appellant claims, as she did in her post-trial motions, that the court erred in failing to charge the jury on corporate negligence. The theory of corporate negligence was first recognized by our Supreme Court in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). Therein it was found that a hospital owes some non-delegable duties directly to its patients, without requiring an injured party to establish the negligence of a third party. Id. at 707. Under this doctrine, a hospital is liable if it fails to uphold the proper standard of care owed to its patient. The plaintiff must show that the hospital had actual or constructive knowledge of the defect or procedures which created the harm and that the hospital's negligence was a substantial factor in bringing about the harm. Id. at 708.
¶ 4 In explaining its decision rejecting Appellant's request for points for charge on corporate negligence, the trial court noted that the hospital did have a policy in effect to override a surgeon's decision to operate. The trial court remarked:
The actual claim presented by Plaintiff was that the nurses failed to activate the policy in this instance. However, the Plaintiff presented no evidence that the Defendant Hospital had actual or constructive notice that the nurses had not followed the Chain of Command policy in this instance. Therefore, there can be no corporate negligence claim for failure to adopt or enforce adequate policies.
Trial court opinion at 6.
¶ 5 From our review the trial court correctly summarized Appellant's theory of the case. In her post-trial motions Appellant states:
Plaintiff's theory was basically that Defendant was liable to Plaintiff because its nurses had failed to bring to the surgeon's attention that he was performing elective surgery in violation of his own policy on a patient who had taken Naprosyn within 72 hours of surgery and that if the surgeon did not voluntarily postpone the operation that Conemaugh's supervisors and administrators, acting through its chain of command policy, should have prevented the surgery from going forward.
¶ 6 We agree with the trial court that this claim is one which, under the facts of this case, does not support a charge on corporate negligence. Appellant is not asserting that the Hospital did not have a chain of command policy, rather the claim is one that the nursing staff negligently failed to follow the instituted chain of command procedure. Appellant did not offer any evidence suggesting that the policy in place was deficient and that the Hospital knew or should have known of its deficiencies. It was not suggested that nurses were routinely failing to institute the chain of command procedure. The claim is simply that the nurses failed to act appropriately in this case. The Hospital's liability in this situation would be based solely on the negligent actions of its staff. The jury was charged on vicarious liability.
¶ 7 On appeal Appellant suggests that there was "systematic" negligence in this case. She maintains the Hospital did not have a specific policy concerning the use of this drug and that there was no policy in place to inform the staff about an individual surgeon's policy regarding the use of this drug prior to surgery. While such claim may support a theory of corporate negligence on behalf of the Hospital, the record presented to us on appeal fails to show that Appellant presented such a claim at trial. Further her post-trial motion indicates that this was not the theory she offered at trial. An appellant can not present one theory of relief in the trial court and pursue a different theory on appeal. Samuel Rappaport Family Partnership v. Meridian Bank, 441 Pa.Super. 194, 657 A.2d 17 (1995). ¶ 8 Appellant did offer evidence from the nursing staff which indicated that they were not told of any policy with regard to the use of this drug and that they were unaware of the surgeon's policy. Expert testimony was also presented opining that the use of Naprosyn was the likely cause of bleeding in this case. However, there is nothing in the record on appeal suggesting that the failure to have a policy regarding a patient's drug usage was substandard and that the hospital knew or should have known of its need to formulate a policy. No expert testimony is included in the record identifying standard procedures employed by hospitals regarding drug policies. Likewise, there is no evidence suggesting that this hospital failed to have a policy that other...
To continue reading
Request your trial
-
Whittington v. Episcopal Hosp.
...confusion, first illustrated in its brief, was compounded during oral argument when it insisted that Boring v. Conemaugh Memorial Hospital, 2000 PA Super 205, 760 A.2d 860 was determinative of our instant matter. The Boring court reviewed a trial court's refusal to give a jury instruction o......
-
Sokolsky v. Edward R. Eidelman, Esquire & Eidelman Crossley, LLC
...to sustain her vicarious liability claim against the hospital for the actions of unnamed hospital employees); Boring v. Conemaugh Mem'l Hosp., 760 A.2d 860 (Pa.Super.2000) (concluding that the trial court properly charged the jury on vicarious liability where Boring claimed that the nursing......
-
In re Estate of Rosser
...evidence in support of such claims. Consequently, we find these claims not preserved for our review. See Boring v. Conemaugh Memorial Hospital, 760 A.2d 860, 861 (Pa.Super.2000), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001) (providing that appellant may not argue a new and different grou......
-
In re Estate of Janosky
...Accordingly, we find this argument has not properly been preserved for our review. Id. at 619. See also Boring v. Conemaugh Memorial Hospital, 760 A.2d 860, 861 (Pa.Super.2000), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001) (providing that appellant may not argue a new and different groun......